Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Appellants v. New York, et al.

Supreme Court briefOct 30, 2020

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No. 20-366

In The

Supreme Court of the United States

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, ET AL.,

Appellants,

NEW YORK, ET AL.,

Appellees.

On Appeal from the United States District

Court for the Southern District of New York

BRIEF OF AMICUS CURIAE FAIR LINES

AMERICA FOUNDATION, INC.

IN SUPPORT OF NEITHER PARTY

JASON B. TORCHINSKY

Counsel of Record

JONATHAN P. LIENHARD

SHAWN T. SHEEHY

KEN DAINES

HOLTZMAN VOGEL

JOSEFIAK TORCHINSKY PLLC

15405 John Marshall Hwy

Haymarket, VA 20169

(540) 341-8808

(540) 341-8809

Jtorchinsky@hvjt.law

DALTON L. OLDHAM

DALTON L. OLDHAM, LLC

137 Edgewater Lane

Lexington, SC 29072

(803) 772-7729

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION & SUMMARY OF THE

ARGUMENT ............................................................... 2

ARGUMENT ............................................................... 4

THIS COURT’S PRECEDENTS FAVOR

THE CENSUS BUREAU PROVIDING

THE PRESIDENT AND THE PUBLIC

WITH INFORMATION—NOT

SUPPRESSING INFORMATION. ................ 4

II. PERMITTING THE CENSUS BUREAU

TO REPORT THIS INFORMATION IS

IMPORTANT FOR REDISTRICTING

PURPOSES. ................................................. 10

CONCLUSION .......................................................... 27

TABLE OF AUTHORITIES

CASES

Abbott v. Perez, 138 S. Ct. 2305 (2018)..................... 26

Bartlett v. Strickland, 556 U.S. 1 (2009) ...... 16, 24, 25

Burns v. Richardson, 384 U.S. 73

(1966) .............................................. 11, 12, 13, 14

Chen v. City of Houston, 532 U.S. 1046 (2001) .. 14, 15

Chen v. Houston, 206 F.3d 502

(5th Cir. 2000) ............................................. 12, 17

Cox v. Larios, 542 U.S. 947 (2004) ........................... 14

Daly v. Hunt, 93 F.3d 1212 (4th Cir. 1996) .............. 12

Dep't. of Comm. v. New York, 139 S. Ct. 2551

(2019) .......................................................... 4, 8, 9

Dep't. of Comm. v. U.S. House of

Representatives, 525 U.S. 316 (1999) ....... 5, 8, 17

Evenwel v. Abbott, 136 S. Ct. 1120 (2016) ........ passim

Flores v. Town of Islip, 382 F. Supp. 3d 197

(E.D.N.Y. 2019) ................................................. 25

Franklin v. Massachusetts, 505 U.S. 788

(1992) ............................................................ 9, 10

Growe v. Emison, 507 U.S. 25 (1993) ....................... 11

iii

Harris v. Ariz. Indep. Redistricting Comm'n,

136 S. Ct. 1301 (2016) ...................................... 14

Kumar v. Frisco Indep. Sch. Dist., 2020 U.S.

Dist. LEXIS 138141 (E.D. Tex., August

4, 2020) .............................................................. 25

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) .................................... 24, 25

NAACP v. E. Ramapo Cent. Sch. Dist. ,

2020 U.S. Dist. LEXIS 91273 (S.D.N.Y.,

May 25, 2020) ................................................... 25

Reynolds v. Sims, 377 U.S. 533 (1964) ..................... 11

Rios-Andino v. Orange Cty., 51 F. Supp. 3d

1215 (M.D. Fla. 2014) ....................................... 25

Thornburg v. Gingles, 478 U.S. 30 (1986) ................ 24

WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964) .......... 11

Wesberry v. Sanders, 376 U.S. 1 (1964).................... 19

STATUTES

2 U.S.C. § 2a(a)............................................................ 5

13 U.S.C. § 141(a).................................................... 4, 5

13 U.S.C. § 141(b)……………… .................................. 5

42 U.S.C. § 1973 ........................................................ 23

OTHER AUTHORITIES

Excluding Illegal Aliens From The

Apportionment Base Following the 2020

Census, 85 Fed. Reg. 44679 (July 23,

2020) ............................................................ 2, 5, 6

Final 2020 Census Residence Criteria and

Residence Situations, 83 Fed. Reg. 5525

(Feb. 8, 2018) .............................................. 2, 3, 6

https://www.polidata.org/census/law/20366dl.

htm (updated October 28, 2020) .......... 20, 21, 22

Nate Cohn and Kevin Quealy, “A Mysterious

‘Undervote’ Could End Up Settling the

Florida Senate Race,” N.Y. Times (Nov.

9, 2018) .............................................................. 21

National Conference of State Legislatures,

2010 Redistricting Deviation Table,

available at

https://www.ncsl.org/research/redistricti

ng/2010-ncsl- redistricting-deviationtable.aspx (last visited Oct. 26, 2020) ........ 17, 18

Redistricting Law 2020, National Conference

of State Legislatures (Denver, 2019) ............... 22

U.S. Census Bureau, “Citizen Voting-Age

Population and Voting Rates for

Congressional Districts: 2018,” available

at https://www.census.gov/data/

tables/time-series/demo/voting-andregistration/congressional-votingtables.html (last visited Oct. 29, 2020) ...... 18, 19

INTEREST OF AMICUS CURIAE

Amicus Curiae is Fair Lines America

Foundation, Inc.1 Fair Lines America Foundation is

a nonprofit, nonpartisan organization that educates

the public on fair and legal redistricting through

comprehensive data gathering, processing, and

deployment; dissemination of relevant news and

information; and strategic investments in academic

research and litigation.

Fair Lines America Foundation’s interest in this

case focuses on the importance of obtaining full and

accurate data from the census. There are significant

legal and compliance challenges when creating

redistricting plans, and Fair Lines America

Foundation helps educate the public about these

important issues. Ensuring courts, legislatures,

academics, and others have access to full and

accurate data is critical to Fair Lines America

Foundation’s mission and to legislatures, academics,

and courts around the country.

1 Fair Lines America Foundation affirms no counsel

for a party to this case authored this brief in whole

or in part, and no person or entity, other than

amicus and its counsel, made a monetary

contribution intended to fund the preparation and

submission of this brief. On October 28, Counsel for

Petitioners and Counsel for all Respondents filed

letters with this Court granting blanket consent to

the filing of all amicus briefs.

INTRODUCTION & SUMMARY OF THE

ARGUMENT

This Court should not block the Census Bureau

from providing information available to it and

requested by the President. Nothing in the

Constitution or law—or in the Presidential

Memorandum2—should be allowed to prevent the

President from requesting and making public

multiple datasets of entirely lawful information

obtained and processed by the Census Bureau.

In fact, the Presidential Memorandum requires

the Census Bureau to “provide information

permitting the President, to the extent practicable,

to exercise the President’s discretion to” exclude

those persons residing in the United States without

authorization from the Congressional apportionment

base.3 Importantly, the Memorandum instructs the

Census Bureau to count people consistent with its

methodology, which includes counting those residing

in the United States at detention facilities operated

by Immigration and Customs Enforcement. See

Final 2020 Census Residence Criteria and Residence

See Excluding Illegal Aliens From The

Apportionment Base Following the 2020 Census, 85

Fed. Reg. 44679 (July 23, 2020). Fair Lines America

Foundation takes no position before this Court on

what population should or should not be the baseline

population in any particular apportionment (either

the distribution of Congressional seats to the states

or the drawing of various district lines within each

state).

3 See id. at 44680.

Situations, 83 Fed. Reg. 5525, 5535 (Feb. 8, 2018);

see also id. at 5533 (stating that citizens of foreign

countries living in the United States are counted at

their residence where they sleep and live most of the

time).

Accordingly, the “information” the Census

Bureau must provide to the President includes the

following three pieces of data:

First: the total population residing in the United

States, including those persons who reside in the

United States illegally;

Second: the total number of United States

citizens of voting age;

Third: the total number of persons residing in

the United States without legal authorization.

Amicus Curiae presents two arguments for this

Court’s consideration.

First, the Presidential Memorandum directs the

Census Bureau to provide the President (and the

public) with information. This Court should not

interfere with the release of information requested

by the President. The more information obtained

from the census, the more the data can assist

policymakers in crafting policies to address issues

confronting federal, state, and local governments.

Second, obtaining information that concerns the

number of U.S. citizens of voting age who reside in

the United States, as well as the number of persons

residing in the United States without authorization,

will be of paramount importance to Congress, state

legislatures, and thousands of local government

bodies that will soon draw representative districts

for the next decade. This information will be

instrumental in the drawing of districts that, in their

judgment, best comply with the one-person, one-vote

principle as well as the Voting Rights Act. This

Court should permit the public dissemination of this

information at the earliest moment possible.

ARGUMENT

THIS COURT’S PRECEDENTS FAVOR

THE CENSUS BUREAU PROVIDING

THE PRESIDENT AND THE PUBLIC

WITH INFORMATION—NOT

SUPPRESSING INFORMATION.

The Presidential Memorandum

Requests The Census Bureau

Provide Him With Information

Available to the Bureau.

The Enumeration Clause of the Constitution

“vests Congress with virtually unlimited discretion

in conducting the decennial actual Enumeration…”.

Dep’t. of Comm. v. New York, 139 S. Ct. 2551, 2566

(2019). Congress then “delegated its broad authority

over the census to the Secretary.” Id.

The Census Bureau is currently tabulating the

total population of those persons residing in the

United States. 13 U.S.C. § 141(a). Once this

tabulation of total population is complete, the

Secretary of Commerce is then directed to report

these numbers to the President of the United States.

Id. § 141(b).

Congress then empowers the President to

transmit the “whole number of persons in each

State” to Congress, including a report detailing the

number of congressional seats each State receives

according the apportionment formula. See 2 U.S.C. §

2a(a).

The Presidential Memorandum, as this Court

has recognized, separates these two distinct steps.

See Dep’t. of Comm. v. U.S. House of Representatives,

525 U.S. 316, 321 (1999) (stating that the Census

Bureau conducts the census, then the Secretary

reports the results of the tabulation to the President

and “[u]sing this information, the President must

then transmit to the Congress a statement showing

the whole number of persons in each State.”)

(internal quotation marks omitted).

Prior to transmitting his report, the Presidential

Memorandum indicates his intent to “exclud[e]

Illegal Aliens from the Apportionment Base

Following the 2020 Census.”4 To do this, he orders

the Secretary of Commerce to provide the President

with the “information” necessary to effectuate his

policy.5 This Memorandum does not require the

Census Bureau to exclude illegal aliens from the

tabulation of total population. On the contrary, the

Memorandum explicitly orders the Census Bureau to

4 See 85 Fed. Reg. at 44680.

5 See id.

include the total population in the United States.6

See Final 2020 Census Residence Criteria and

Residence Situations, 83 Fed. Reg. 5525, 5535 (Feb.

8, 2018).

This means the Census Bureau will still provide

the President with the total population of the United

States. What the Memorandum requests is that the

Census Bureau also provide information concerning

how many persons reside in the United States

without authorization. The Memorandum also

requests the number of United States citizens

residing in the United States.

Regardless of whether the President must use

the total population number when apportioning

congressional seats, this Court should continue to

recognize the two steps—the Secretary reporting

various pieces of information to the President and

the President then apportioning the number of

congressional seats—as separate and distinct

processes. Thus, however this Court rules on which

dataset is correct for the apportionment, this Court

should permit the Secretary to publicly report this

important information.

Accordingly, the district court’s opinion went too

far when it enjoined the Census Bureau from

reporting “information” to the President that would

allow the President to carry out the policy he

outlined in his Presidential Memorandum. See JA

99a. The district court ordered that the Census

Bureau withhold from the President (and the public)

6 See 85 Fed. Reg. at 44680.

the number of persons residing in the United States

without authorization and only report to the

President the total population. See id. This was

erroneous: there is nothing unconstitutional or

impermissible about providing the number of

persons lawfully and unlawfully within the

boundaries of the United States.

Regardless of the outcome of this case on the

apportionment base debate, the district court’s order

committed legal error by barring the Secretary from

providing the President with information he

requested. It precluded the reporting of information

to the President—step one—as a means to prevent

the President from using that information to

apportion congressional seats at step two. In

preventing the dissemination of citizenship

information and the number of those persons living

in the United States without authorization, the

district court exceeded its remedial scope and

prohibited the release of otherwise permissible

public information the President may lawfully

request from the Census Bureau. This Court should

permit the dissemination of this pertinent

information.7

While not addressed in detail herein, Fair Lines

America Foundation agrees with the Solicitor

General that the Appellees here, Plaintiffs below,

lack standing.

Both Congress And This Court

Favor Obtaining The Most

Accurate Information.

From the very first census in 1790, Congress has

demanded “a just and perfect enumeration of every

person” living in the United States. Dep’t. of Comm.,

525 U.S. at 335. Statistical sampling was prohibited.

Id. This remained the practice in the United States

from 1790 to 1957. Id. at 336. In 1957, some

statistical sampling was permitted, but not for

purposes of apportionment. See id. at 336-37.

Congress’s steadfast purpose in obtaining the most

accurate count of population for apportionment

purposes remains as true today as it did in 1790. See

id. at 338.

This does not mean the census cannot use

statistical sampling. In fact, the Secretary is

required “to use statistical sampling in assembling

the myriad demographic data that are collected in

connection with the decennial census.” Id. Congress

was interested in both obtaining the most accurate

count of the population for apportionment purposes

as well as obtaining the most data it could assemble.

Accordingly, citizenship has long been the subject of

census questions, among other demographic data.

Dep’t of Comm., 139 S. Ct. at 2567. In fact, nearly

every census since 1790 has included a question

about whether the census respondent was a U.S.

citizen. Id. at 2561.8

The American Community Survey (ACS) is

insufficient to determine the number of U.S. citizens

because the ACS is sent to only 2.6% of households.

Accordingly, the purpose of the census is to both

apportion Congress and for “information-gathering

purposes.” Id. The census is, therefore, the “linchpin

of the federal statistical system by collecting data on

the characteristics of individuals, households, and

housing units throughout the country.” Id. Thus,

using the census to collect data on the number of

citizens is permissible under the Constitution. Id. In

fact, this Court credited the Secretary’s interest in

including a citizenship question on the census

because it was likely to obtain “more complete and

accurate citizenship data” and was worth the risk of

a potentially “lower response rate.” Id. at 2571.

Another example of Congress’s determination to

ensure an accurate count is the 1970 Census. This

census, conducted during the Vietnam War,

accounted for the numerous Armed Forces members

serving abroad. The Census Bureau used personnel

records from the Department of Defense to allocate

these persons to their “home[s] of record.” Franklin

v. Massachusetts, 505 U.S. 788, 793 (1992). After

realizing that those “home[s] of record” in Defense

Department records were prone to misuse, the

Census Bureau declined to use these records in the

1980 Census. Id. Later, for the 1990 Census, the

Census Bureau found these records were in fact

accurate and invited 40 federal agencies with

employees overseas to “submit counts of their

employees as well.” Id. at 795. This Court upheld

this practice in part because these employees and

Dep’t. of Comm. v. New York, 139 S. Ct. 2551, 2562

(2019).

service members likely consider themselves to be

“usual residents” of the United States, and counting

them does not harm the “goal of equal

representation” but “actually promotes equality.” Id.

at 806.

All this information is submitted to the

President who this Court has ruled has the power to

“reform” the census count before apportioning the

number of congressional seats. See id. at 798.

Additionally, the Secretary’s report “carries no direct

consequences for reapportionment.” Id at 798. To

ensure the integrity and accuracy of the census

count, Congress empowered both the Secretary of

Commerce and the President of the United States to

tabulate the total population and make calculations

to send the final report with the apportionment

conclusions to Congress. Id. at 800. The President

has an independent duty to consider the census data

before making the apportionment.

II.

PERMITTING THE CENSUS BUREAU

TO REPORT THIS INFORMATION IS

IMPORTANT FOR REDISTRICTING

PURPOSES.

A. OBTAINING THIS INFORMATION

IMPORTANT

FOR

ONE

PERSON, ONE VOTE PURPOSES.

This

Information

Instrumental

For

Policy

Makers Deciding How to

Conduct Redistricting.

When state legislatures conduct their sovereign

function of drawing districts, see, e.g., Growe v.

Emison, 507 U.S. 25, 34 (1993), the Fourteenth

Amendment’s Equal Protection Clause does not

command that the legislature use total population or

citizen population as the basis for those districts. See

Evenwel v. Abbott, 136 S. Ct. 1120, 1123, 1126 (2016)

(holding a state may use total population as its base

to draw legislative districts, and further holding that

the Equal Protection Clause does not require a state

to use the number of voters as its base); Burns v.

Richardson, 384 U.S. 73, 91 (1966) (“[T]he Equal

Protection Clause does not require the States to use

total population figures derived from the federal

census as the standard by which this substantial

population equivalency is to be measured.”).

In fact, this Court has reviewed equal protection

challenges to state legislative districts where the

state used total population, Reynolds v. Sims, 377

U.S. 533 (1964) and where the state used citizen

population, WMCA, Inc. v. Lomenzo, 377 U.S. 633,

646-49 (1964) (analyzing under the Equal Protection

Clause New York’s redistricting plan drawn on the

basis of citizen population).9 This Court has

therefore acknowledged that it has never held States

“are required to include aliens, transients, shortterm or temporary residents, or persons denied the

vote for conviction of crime, in the apportionment

9 See also Burns, 384 U.S. at 91-92 (stating that in

Lomenzo “we treated an apportionment based upon

United States citizen population as presenting

problems no different from apportionments using a

total population measure”).

base by which their legislators are distributed and

against which compliance with the Equal Protection

Clause is to be measured.” Burns, 384 U.S. at 92. A

State legislature’s choice of its apportionment base

“involves

choice

about

the

nature

representation.” Id.

Accordingly, the state legislatures need

citizenship data in determining whether to apportion

their districts based upon total population or citizen

populations, or by using some combination of this

data. States have the discretion to apportion their

districts to “equalize total population, to equalize

eligible voters, or to promote any other principle

consistent with a republican form of government.”

Evenwel, 136 S. Ct. at 1133 (Alito, J., concurring).

Some federal circuit courts are in agreement that

the political branches of government are empowered

to decide whether to use a total population or citizen

population. See Chen v. Houston, 206 F.3d 502, 523

(5th Cir. 2000) (“[W]e find that the choice of

population figures—[the use of CVAP or total

population]—is a choice left to the political process.”)

(emphasis added); Daly v. Hunt, 93 F.3d 1212, 1227

(4th Cir. 1996). Accordingly, for States to make

informed decisions about this “quintessentially”

political decision of which apportionment base most

accurately reflects their individual state, Daly, 93

F.3d at 1227, the legislatures need the most accurate

citizenship data. This Court should permit the

Secretary to report this data.

This Data Implicates Serious

Policy Decisions Regarding the

One

Person,

One

Vote

Principle.

This Court has previously expressed concern

about the difference between districts drawn on the

basis of total population with those districts drawn

on the basis of registered voters in discussing

electoral equality. See Burns, 384 U.S. at 90. In

Burns, this Court analyzed Hawaii’s state legislative

redistricting plan. Hawaii chose to use registered

voters as a basis “for Hawaiian apportionment…”.

Id. This decision produced “sizable differences in

results produced by that distribution in contrast to

that produced” by total population. Id. For example,

if Hawaii drew districts on the basis of total

population, Oahu constituted 79% of Hawaii’s

population and was entitled to 40 seats in its 51-seat

House of Representatives. Id. By contrast, if districts

were drawn on the basis of registered voters, Oahu

would be entitled to 37 representatives. Id. The

reason for this disparity was the “uneven

distribution

military

residents—largely

unregistered…”. Id. The difference between districts

on the island of Oahu are even more striking. If

districts were drawn on the basis of total population,

Oahu’s 9th and 10th districts would be entitled to

eleven representatives. On the other hand, if they

were drawn on the basis of registered voters, this

number drops to six. See id. at 90-91.

The Court then highlighted the problem with the

choice between total population and registered

voters as the basis of apportionment. Each choice is

“susceptible to improper influences” by those with

political power. Id. at 92. Those in political power

could use the over-representation issue presented by

non-voting populations like military bases to

“perpetuate

underrepresentation

groups

constitutionally entitled to participate in the

electoral process, or perpetuate a ghost of prior

malapportionment.” Id. at 92-93. Due to the large

presence of the military bases containing large

population centers but only a small number of

voters, “if total population were to be the only

acceptable

criterion upon

which

legislative

representation could be based, in Hawaii, grossly

absurd and disastrous results would flow.” Id. at 94.

Accordingly, using total population figures may

constitute a “substantially distorted reflection of the

distribution of state citizenry.” Id.

In a subsequent case, Justice Thomas

highlighted how this choice between total population

and citizen population implicated the one-person,

one-vote principle. See Chen v. City of Houston, 532

U.S. 1046 (2001) (Thomas, J., dissenting from denial

of cert.). There, the City of Houston’s total

population deviation had less than 10% of population

variance. Id. at 1048. This Court has ruled that a

population variance of less than 10% is prima facie

constitutional. Harris v. Ariz. Indep. Redistricting

Comm’n, 136 S. Ct. 1301, 1307 (2016). But see Cox v.

Larios, 542 U.S. 947, 949-50 (2004) (Stevens, J.,

concurring) (declining to create a “safe harbor” for all

“population deviations of less than 10 percent,

within which districting decisions could be made for

any reason whatsoever”). Based on total population,

the City of Houston’s redistricting map appears to

survive a one person, one vote equal protection

challenge. If, however, citizen population were used

as the basis, the maximum deviation is anywhere

from 20% to 32.5%. Chen, 532 U.S. at 1048 (Thomas,

J., dissenting from denial of cert.). Thus, the decision

to base apportionment on total population or citizen

population can be the difference between a

constitutional map with population deviations less

than 10% or an unconstitutional map with

deviations above 30%.

The problem is one of numerical, racial, and

political vote dilution, as well as often intentional

dilution. Non-citizen population is yet another

subset of non-voting population, no different than

the previously cited military bases in Hawaii. It is

also similar to universities, prisons, and other nonvoting populations—many of which have been

“adjust[ed]” by various states over the years when

determining the apportionment base. See Evenwel,

136 S. Ct. at 1124 n.3. However, non-citizen

population is the largest non-voting block of voting

age population by far. It is also the only non-voting

block for which accurate geographic data is currently

unattainable.10

10 “Geographic accuracy” refers to the ability to have

accurate data at small levels of geography (i.e. the

block level) that can be accurately aggregated into

political districts. The Census Bureau often

discusses the similar concept of “distributive

accuracy,” which is also concerned with the issue of

small area accuracy, but does not always address the

issue of maintaining accuracy when aggregating

those areas into non-census geography, such as

As the Census Bureau ramped up for the 2010

Census, this Court decided Bartlett v. Strickland,

which reinforced the importance of citizen voting age

population as a key determinant for remedies of

Section 2 cases. 556 U.S. 1 (2009). However, prior to

the census following this Court’s decision in Bartlett,

the Census Bureau eliminated the long form (and

therefore the citizenship question) from the

decennial census.11

When the Bureau did that, it had to determine

whether to continue including the citizenship

question as part of the decennial census, what had

previously been called the short form, or migrate the

question to the American Community Survey (ACS).

Because the ACS is a rolling survey done over

multiple years with a different population base and

with a smaller sample size, it cannot, as

demonstrated in the Evenwel case, provide accurate

geographic data with respect to the citizenship

question, particularly at the block level as is needed

for redistricting. See 136 S. Ct. 1120.

political districts. This is another reason why the use

of enumerated data, rather than statistically

generated data, is critical.

11 Until 2010, the long form was asked of every

seventh person in the decennial census and

contained a citizenship question. Because it was

asked with the decennial census, used the same

population base, and was asked of a large

contemporaneous sample, it provided reasonably

accurate characteristic data at the block level, which

neither the ACS nor any other current census

product does.

Having the enumerated data, which the Bureau

is now preparing from administrative records, see

Dept. of Commerce v. House of Representatives, 525

U.S. at 321-27, is critical to an apportionment

process that protects the equal protection rights of

all citizens. The district court’s decision below will

have the effect of denying any relief for any

Fourteenth Amendment and Voting Rights Act

violations because litigants will not have complete

data with which to make their case, and courts will

not have accurate data with which to fashion any

required remedies. If a state uses total population as

its apportionment base, and its “eligible voters are

unevenly distributed, the result will necessarily

devalue the votes of individuals in the area with a

higher percentage of potentially eligible voters.”

Chen, 206 F.3d at 525. The problem arises because

“the large populations in the other district will

leverage the votes of the smaller number of eligible

voters there.” Id.

This problem persists now. For example, in

California, using total population as the base for its

apportionment, its 53 congressional districts have a

population deviation of 0%.12 Its state Senate

districts and state House districts have total

population deviations of 1.98% and 1.99%

respectively.13 Using actual voter turnout as the

See National Conference of State Legislatures,

2010 Redistricting Deviation Table, available at

https://www.ncsl.org/research/redistricting/2010ncsl-redistricting-deviation-table.aspx (last visited

Oct. 26, 2020).

apportionment basis (i.e., as a proxy for the number

of eligible voters since geographically accurate

citizen voting age population (CVAP) data isn’t

available),14 it is possible to examine the population

“deviation” in California’s congressional districts in

2018. The “ideal” turnout in a California district in

2018 was 229,869 based on the votes cast that year.

The highest turnout district had 340,654 votes cast.

The lowest turnout district had 113,616 votes cast.

The “deviation” from the ideal for the highest

turnout district is +48%, and the deviation for the

lowest turnout district is -51%, for a “range” of

99%.15 In other words, in the 2018 election 340,654

citizens voted to elect one U.S. Representative in one

California district, while in another California

13 See id.

14 While data about the number of voters who turned

out for elections is not detailed enough to address

the possible equal protection issues created by large

blocks of non-voting population, it is sufficient to

illustrate the extent and nature of the issue. It also

helps to illustrate the problems that come with the

Census Bureau’s sudden removal of geographically

accurate non-citizen data ten years ago, which had

been available previously for decades. If allowed to

stand, the district court’s decision may ensure this

information never returns.

U.S. Census Bureau, “Citizen Voting-Age

Population and Voting Rates for Congressional

Districts:

2018,”

available

https://www.census.gov/data/tables/timeseries/demo/voting-and-registration/congressionalvoting-tables.html (last visited Oct. 29, 2020).

district 113,616 citizens voted to elect one U.S.

Representative.

Another metric that can be used to assess

electoral equality (or inequality) is the vote weight,

which is a comparison of the population base, here

votes cast for all candidates in a statewide race, for

the district with the most votes and the least.

Looking again at the 2018 California congressional

plan to illustrate, these numbers translated into a

vote weight of 2.998 (340,654/113,616),16 meaning

the weight of a vote in the low turnout district was

worth nearly three times a vote in the high turnout

district in that election year.17 This kind of vote

weight imbalance between a State’s districts

seriously implicates the one-person, one-vote

principle. As this Court has pertinently admonished:

“It would be extraordinary to suggest . . . the votes of

inhabitants of some parts of a State . . . could be

weighted at two or three times the value of the votes

of people living in [other] parts of the State.”

Wesberry v. Sanders, 376 U.S. 1, 8 (1964).

Comparable metrics from New York state also

illustrate the disparity in electoral equality. For

example, in the 2014 race for Governor of New York,

the range of deviations from the average number of

16 See id.

This demonstrates that because many persons

identified by the census are not even eligible to vote,

using total population as the basis for apportionment

can result in significant vote weight inequality

among actual eligible voters.

total votes for all candidates per district is as

follows:



For congressional districts: 106.10%

(+48.50% to -57.59%) which translates

into a vote weight of 3.50 for that plan. In

the congressional district with the highest

turnout, 209,714 voters voted to elect one

U.S. Representative. In the congressional

district with the lowest turnout, 59,890

voters

voted

elect

one

U.S.

Representative.



For state senate districts: 118.38% (+55.75

to -62.93%) which translates into a vote

weight of 4.20 for that plan. In the senate

district with the highest turnout, 94,257

voters voted to elect one senator. In the

senate district with the lowest turnout,

22,433 voters voted to elect one senator.



For state assembly districts: 160.59%

(+86.71 to -73.88%) which translates into

a vote weight of 7.14 for that plan. In the

legislative district with the highest

turnout, 47,474 voters voted to elect one

state assembly member. In the assembly

district with the lowest turnout, 6,641

voters voted to elect one state assembly

member.18

18See https://www.polidata.org/census/law/20366dl.ht

m (updated October 28, 2020).

For both California and New York, a comparison

of the number of total votes for statewide office

demonstrates a clear relationship: the higher the

proportion of non-citizens based on ACS estimates,

the lower the total votes for all candidates. To

illustrate, the close correlation between CVAP on the

one hand and total votes cast on the other is evident

from examining these numbers from the 2018

election across the five most populous states’

congressional districts, as reflected in the attached

graphs. See App. 1-5.19

How electoral equality varies (at least for

congressional districts) across other states is

apparent in the results from a review of all 435

districts for each presidential election.20 For

19 Four Florida congressional districts are excluded

in the Florida graph in the attached appendices

because the Census Bureau’s 2018 data table did not

include the votes cast in those congressional

districts. This is because in Florida, candidates do

not appear on the ballot in uncontested races. See

Nate Cohn and Kevin Quealy, “A Mysterious

‘Undervote’ Could End Up Settling the Florida

Senate Race,” N.Y. Times (Nov. 9, 2018), available at

https://www.nytimes.com/2018/11/09/upshot/floridasenate-race-broward-undercount.html (last visited

Oct. 29, 2020). Accordingly, no votes were cast or

counted in those four districts with uncontested

races.

20See https://www.polidata.org/census/law/20366dl.ht

m (updated October 28, 2020). Examples listed here

include states for which the listings on the website,

example, looking at the 2004 presidential race,

Florida had a high district with 379,839 votes and a

low district with 206,081 votes: this is a vote weight

of 1.84. North Carolina had a high district with

349,702 votes and a low district with 223,421 votes:

this is a vote weight of 1.56. Texas had a high

district with 347,217 votes and a low district with

107,631 votes: this is a vote weight of 3.22.21 And,

once again, based on non-citizen data, the proportion

of non-citizens was generally higher in the districts

with the lowest number of votes cast.

Furthermore, an alternate population base is not

the only way the discriminatory effect of non-voter

population can be dealt with. For instance, several

states have already chosen to take areas of readily

identifiable

non-voting

population,

such

universities, military installations, and correctional

institutions, and reassign those persons amongst

many districts to minimize the electoral inequality

impact of the non-voting population.22 However,

without accurate geographic non-voting population

data, this is impossible for the non-voting population

that has the largest impact on electoral inequality.

The data the President seeks in his memo is the

which summarize only the top and bottom districts

for the entire nation, include the high and low

turnout districts.

21See https://www.polidata.org/census/law/20366dl.ht

m (updated October 28, 2020).

22 See Redistricting Law 2020, National Conference

of State Legislatures (Denver, 2019), at 155; see also

Evenwel, 136 S. Ct. at 1124 n.3.

necessary predicate for that geographically accurate

data.

To determine how best to represent its

population, whether to base apportionment on total

population or citizen population, states need

information on citizenship status. Accordingly, this

Court should permit the Census Bureau to publish

its information on the number of citizens residing in

the United States.

B. OBTAINING THIS INFORMATION

IS IMPORTANT FOR VOTING

RIGHTS ACT PURPOSES.

Information on the number of citizens residing in

a district, and information concerning the number of

persons residing in a district illegally, is important

for compliance with the Voting Rights Act. Section 2

of the Voting Rights Act prohibits the enactment of

laws or procedures that results in “a denial or

abridgment of the right of any citizen of the United

States to vote on account of race or color…”. 42

U.S.C. § 1973 (emphasis added). To violate this

provision, a plaintiff must show that based on the

totality of the circumstances, the ability to cast a

ballot in a primary or general election “are not

equally open to participation by members of a class

of citizens…”. See id. (emphasis added).

To prove a violation under Section 2 of the

Voting Rights Act, a plaintiff must demonstrate the

minority citizen population is sufficiently large to be

considered a voting majority in a single-member

district; the minority group is politically cohesive;

and there must be racially polarized voting such that

the majority typically defeats the minority’s

candidate of choice. See Thornburg v. Gingles, 478

U.S. 30, 50-51 (1986). The purpose of Section 2 is to

extract from our body politic the corrosive wrong

that occurs when a minority has “50% or more of the

voting population and could constitute a compact

voting majority, but, despite racially polarized bloc

voting, that group is not put into a district.” Bartlett,

556 U.S. at 19 (emphasis added).

In analyzing whether a plaintiff has shown the

minority population is sufficiently large as to

constitute a majority, the proper basis of the

population is citizen voting age population. See id. at

27 (Souter, J., dissenting) (“In the plurality's view,

only a district with a minority population making up

50% or more of the citizen voting age population

(CVAP) can provide a remedy to minority voters

lacking an opportunity ‘to elect representatives of

their choice.’”); League of United Latin American

Citizens v. Perry, 548 U.S. 399, 436 (2006)

(“LULAC”) (“We proceed now to the totality of the

circumstances, and first to the proportionality

inquiry, comparing the percentage of total districts

that are [minority] opportunity districts with the

[minority] share of the citizen voting age

population.”).

As discussed above, just as this Court

determined CVAP was the crucial piece of data for

determining what is and is not a majority-minority

district, the Bureau frustrated the decision of the

Court by eliminating the very data and evidence it

relied upon in LULAC and Bartlett. Because this

data which the Court had relied upon in those cases

has been absent from the public record since the

2010 Census, the courts, legislatures, litigants, and

the public have been forced to use inaccurate

estimates and indirect data to estimate a data point

which was quite specific when this Court made its

decision in Bartlett.23

The current administration, through its

administrative data program, has attempted to

restore what was taken away in 2010, with perhaps

23 Recent disputes before federal courts over how to

calculate or estimate CVAP in Voting Rights Act

cases show just how imprecise and contested these

estimates are. See e.g., Kumar v. Frisco Independent

School District, 2020 U.S. Dist. LEXIS 138141 (E.D.

Tex., August 4, 2020) (utilizing CVAP data derived

from a Spanish surname list in a Section 2 case and

not using ACS data); NAACP v. E. Ramapo Central

School District, 2020 U.S. Dist. LEXIS 91273

(S.D.N.Y., May 25, 2020) (approving use of the

Bayesian Improved Surname Geocoding (“BISG”)

method for determining CVAP in a Section 2 case);

Flores v. Town of Islip, 382 F. Supp. 3d 197

(E.D.N.Y. 2019) (utilizing ACS data estimates to

determine CVAP in a Section 2 case); Rios-Andino v.

Orange County, 51 F. Supp. 3d 1215 (M.D. Fla. 2014)

(ruling against plaintiffs in a Section 2 case because

of the uncertain nature of the dueling experts’

citizenship calculations, where the experts used two

different analyses of ACS data to determine

citizenship). If the Census Bureau were to release

enumerated data, these expert battles over CVAP

before the lower courts would be minimized or even

eliminated.

an increase in geographic accuracy. The decision

below—if uncorrected by the Court—would ensure

the enumerated citizenship data is never available

for any purpose. This suppression of information by

court order is unnecessary to provide relief to the

plaintiffs in the case below.

Furthermore, in drafting districts, legislatures

must have access to citizenship data for another

reason. Without that data, in attempting to comply

with the Voting Rights Act, legislatures must be

wary of the “competing hazards of liability” by

violating the Equal Protection Clause’s prohibition

against racial gerrymandering while balancing the

requirements of Section 2. See Abbott v. Perez, 138 S.

Ct. 2305, 2314-15 (2018) (“The Equal Protection

Clause forbids “racial gerrymandering,” that is,

intentionally assigning citizens to a district on the

basis of race without sufficient justification.”)

(emphasis added).

For legislatures to determine whether the Voting

Rights Act requires the creation of a majorityminority district, these legislatures must have access

to data about the citizenship composition of the

proposed district maps.24 This data will also assist in

preventing the legislature from violating the

prohibition against racial gerrymanders.

As demonstrated above, supra note 22, ongoing

disputes remain over what CVAP data or estimates

legislatures and line drawers should use when

assessing Section 2 compliance with adopted or

proposed maps.

CONCLUSION

The district court committed an error at the very

least in their commanded remedy. The district court

was asked to prevent the President of the United

States from using anything other than the total

population of the United States to apportion

congressional

seats.

The

Congressional

apportionment occurs at the second step of the

census reporting statute, and the district court’s

order did not properly assess the first step of the

process.

The district court improperly prevented the

Secretary from even reporting information to the

President at step one. Regardless of how this Court

decides the merits of the case at step two, this Court

should never prevent the Secretary of Commerce

from reporting the number of U.S. citizens living in

the United States and the number of those persons

residing in the United States without authorization.

This information is critically important, especially

for legislatures as they embark on their sovereign

function of drawing districts for the following

decade.

Respectfully submitted,

JASON B. TORCHINSKY

Counsel of Record

JONATHAN P. LIENHARD

SHAWN T. SHEEHY

KEN DAINES

HOLTZMAN VOGEL

JOSEFIAK TORCHINSKY PLLC

15405 John Marshall Hwy

Haymarket, VA 20169

(540) 341-8808

(540) 341-8809

Jtorchinsky@hvjt.law

DALTON L OLDHAM

DALTON L OLDHAM, LLC

137 Edgewater Ln

Lexington, SC 29072

(803) 772-7729

October 30, 2020

Appendix

App. 1

California Congressional Districts: CVAP and Votes Cast (2018)

700,000

600,000

Total Number

500,000

400,000

300,000

200,000

100,000

‐

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53

Congressional District

Votes Cast

CVAP

Source: U.S. Census Bureau, "Citizen Voting‐Age Population and Voting Rates for Congressional Districts: 2018," available at

https://www.census.gov/data/tables/time‐series/demo/voting‐and‐registration/congressional‐voting‐tables.html

App. 2

Texas Congressional Districts: CVAP and Votes Cast (2018)

700,000

600,000

Total Number

500,000

400,000

300,000

200,000

100,000

‐

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36

Congressional District

Votes Cast

CVAP

Source: U.S. Census Bureau, "Citizen Voting‐Age Population and Voting Rates for Congressional Districts: 2018," available at

https://www.census.gov/data/tables/time‐series/demo/voting‐and‐registration/congressional‐voting‐tables.html

App. 3

New York Congressional Districts: CVAP and Votes Cast (2018)

600,000

500,000

Total Number

400,000

300,000

200,000

100,000

‐

Congressional District

Votes Cast

CVAP

Source: U.S. Census Bureau, "Citizen Voting‐Age Population and Voting Rates for Congressional Districts: 2018," available at

https://www.census.gov/data/tables/time‐series/demo/voting‐and‐registration/congressional‐voting‐tables.html

App. 4

Florida Congressional Districts: CVAP and Votes Cast (2018)

700,000

600,000

Total Number

500,000

400,000

300,000

200,000

100,000

‐

Congressional District

Votes Cast

CVAP

Source: U.S. Census Bureau, "Citizen Voting‐Age Population and Voting Rates for Congressional Districts: 2018," available at

https://www.census.gov/data/tables/time‐series/demo/voting‐and‐registration/congressional‐voting‐tables.html

App. 5

Pennsylvania Congressional Districts: CVAP and Votes Cast (2018)

600,000

500,000

Total Number

400,000

300,000

200,000

100,000

‐

Congressional District

Votes Cast

CVAP

Source: U.S. Census Bureau, "Citizen Voting‐Age Population and Voting Rates for Congressional Districts: 2018,"

available at https://www.census.gov/data/tables/time‐series/demo/voting‐and‐registration/congressional‐voting‐

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